Top Tips for Drafting a Divorce Order

By Clive Hill, 9 April 2019

Sally is a divorced mother of four living in Cape Town. Since she had been a stay-at-home mom during their 20-year marriage, her ex-husband Jake had agreed to pay monthly spousal maintenance after their divorce. When Jake died unexpectedly Sally found herself in severe financial straits – the payments stopped and, as an ex-spouse, she had no claim on Jake’s estate.

“This situation could have been avoided if Sally and Jake had drafted their divorce order differently,” says Clive Hill, legal adviser at Sanlam Trust. “While dealing with the emotions of divorce, women often overlook crucial aspects of the settlement agreement – which if handled correctly, can prevent needless hardship down the line.” Hill says both divorce parties, but women in particular, need to consider the following:

Including Security for Spousal Maintenance

In the event of the ex-spouse dying, his
minor children will be able to claim for maintenance against the deceased estate, but his ex-wife will not. This can be addressed by stipulating in the settlement agreement to be made an order of court that spousal maintenance obligations will be binding on deceased estate. A lump sum, based on life expectancy, can then be paid out to the ex-spouse from the estate.

Specifying That Benefits in the Divorce Order Be Inflation-Linked

This not only concerns maintenance, but medical and education costs. Medical contribution increases are usually much higher than the consumer price index (CPI), as is the cost of private schooling. A more sophisticated approach to annual escalation rates than CPI is needed when calculating these benefits – one needs to look at actual costs.

Wording the Divorce Order to Give Access to an Ex-Spouse’s Retirement Savings

Pension funds can’t enforce divorce orders which don’t adhere strictly to legal requirements. They must be worded in a very specific way. The order must specify that that the ex-spouse is entitled to a ‘pension interest’, and state the exact share of the interest. The identification of the pension fund in question must also be precise.

Ensuring Any Benefits Accruing from Life or Endowment Policies Are Accurately Described

The names of the particular policies and insurance companies must be included. However, it is not enough to include details of a change of beneficiary only in the divorce order. If an ex-spouse is to be the new beneficiary, then the intended beneficiary nomination also has to be lodged with the insurance company in question for it to be valid.

Undertaking a Thorough Valuation of All Assets

Hill says this is becoming a specialist area. Especially in the high net worth market, it is crucial to ensure accurate valuations are done, and it is therefore advisable to appoint a professional appraiser. It is not necessarily a good idea to convert all assets to cash. It may be prudent to transfer the assets themselves to the ex-spouse instead of liquidating them. For instance, it may not be the best time in the market to sell the family house, or to sell shares in a rising stock market.

Conducting a Detailed Investigation of Business Assets

Business assets are often challenging to liquidate, since the business owner may not be able to dispose of assets without the consent of co-shareholders and without affecting his income-earning capacity. The divorce attorney should thoroughly examine all assets, perhaps securing expert assistance. Looks may be deceiving – the business owner may look wealthy but his venture may have huge debts of which his spouse is unaware.

Ensuring All Assets and Benefits Are Transferred Without Delay

If her former spouse dies before transfer has taken place, an ex-wife may find herself at the end of a long list of claimants to the deceased estate. No matter what the divorce order states, creditors are also entitled to their share. This also applies if the ex-spouse is still alive and gets into financial trouble – creditors can attach assets which were supposed to have been transferred to the ex-wife.

Employing a Qualified Financial Adviser as Well as an Attorney

It should be clear that drafting a divorce order can be a complex matter. Hill says it is essential that each party has their own financial adviser and attorney. Having two specialists who can together come up with solutions for the best possible divorce settlement agreement is invaluable.